State and local bars lead the charge in protecting the separation of powers

Volume 33Number 3

By
Robert J. Derocher

74 percent of Americans said they knew at least one of the three branches of government. When asked to name them, only 36 percent correctly named all three. | 15 percent of Americans knew that John Roberts is the Chief Justice of the U.S. Supreme Court, while 66 percent could name one of the three judges on American Idol. | 91 percent of Americans said state judges interpret state laws and constitutions, while 87 percent believe, to a great or moderate extent, that it is the state legislators’ responsibility—an overlap of 81 percent.

—Source: 2007 survey, Annenberg Public Policy Center

Survey results like these make Sandra Day O’Connor cringe.

“It’s pretty pathetic,” the retired U.S. Supreme Court Justice tells Bar Leader in an exclusive interview. “It’s a real effort nationwide to give judges the kind of understanding and respect that was the design of the framers of our Constitution. We have education we need to do at the federal level, as well as at the state levels.”

The lack of public knowledge—combined with blurred lines of separation of powers and the negative perceptions of influence in states with judicial elections—continues to undermine the bedrock constitutional concept of an inde-pendent, impartial judiciary, she says.

Since leaving the nation’s highest court in 2006, Justice O’Connor has been a fervent campaigner for judicial in-dependence—one of the reasons that ABA President H. Thomas Wells Jr. asked her to serve as honorary chair for the new ABA Presidential Commission on Fair and Impartial State Courts. She will be the keynote speaker at the commission’s invitation-only summit scheduled for May 7–9 in Charlotte, N.C.

The summit comes amid continued threats throughout the country to judicial independence and impartiality. Per-sistent charges of “judicial activism” from citizen groups such as Jail4Judges, efforts by publicly critical state legis-lators to limit judicial decision making and funding for the courts, and deep pocket spending by special interest groups in state judicial elections remain very much on the radar screens of the commission, as well as the ABA Standing Committee on Judicial Independence.

Organizers hope the summit and its invited delegations of chief justices and judges, bar leaders, legislators, and representatives of nongovernmental organizations can provide a boost to efforts by the ABA and state and local bars to promote and protect fair and impartial state courts. Although education and outreach efforts are gaining traction in some places and some attacks have abated, bar associations of all sizes—as the chief spokespersons for the judici-ary—must continue to do more.

A failure to act, many say, will lead to intensified attacks on treasured constitutional ground, increase public skepticism about the rule of law, and drive talented lawyers away from the judiciary.

Danger continues on many fronts

At first glance, questionable attacks and criticisms of the judiciary appeared to have reached their zenith in 2005, when a Georgia judge was slain on the bench, the family of a federal judge was killed in Chicago, and brain-damaged Terri Schiavo died after a series of judicial orders authorized her husband to remove her from life support. The Schiavo case was notable for efforts by Florida’s governor and legislators, as well as members of the U.S. Con-gress, to block multiple court rulings.

At the same time, the citizen group Jail4Judges gathered 40,000 signatures for a ballot initiative that potentially would have made judges in South Dakota liable for their decisions. After an intensive lobbying effort led by the State Bar of South Dakota, voters turned down the initiative by a 9-1 margin in 2006.

“The public environment for judges is better in some respects than in the recent past,” says David Rottman, prin-cipal court research consultant for the National Center for State Courts (NCSC) in Williamsburg, Va. “Some attacks on the courts and judges have been powerful civic lessons on the appropriate role of the courts. The Terri Schiavo case is perhaps the best example.”

But Rottman is quick to caution that the present calm should not be a predictor of the future. Justice O’Connor needs only to look at actions in her home state of Arizona to confirm his assessment.

As the Arizona State Senate majority leader in 1974, she helped spearhead the state’s current judicial selection system for the Arizona Supreme Court and Court of Appeals. It is patterned after the Missouri Plan, which calls on the governor to name a judge from a group of candidates screened by a nonpartisan nominating commission. The Arizona legislature is now looking at a bill that would require the election of all trial judges.

“I think today, Arizona has as good a judicial branch as any state in the union. And I attribute it to the very effec-tive method of selecting judges. It’s worked really well,” she says. “Yet, there are some in the legislature who want to put on the ballot again the notion of electing judges.”

In Missouri, the birthplace of the Missouri Plan, the state legislature killed a move to put more judicial appointive power in the hands of the governor, although a group backing the proposal, Better Courts for Missouri, has an active website that is seeking to petition the legislature to reconsider the idea.

The Florida Bar was named this year in a lawsuit filed by a group known as Florida Jail4Judges, which alleged that the association tried to “usurp political power reserved to the people, disparage the right to petition for redress (and) violate constraints relating to engaging in political activity,” according to court papers. After a series of mo-tions, a federal judge in October 2008 dismissed the group’s complaints.

Powerful citizen interest groups such as Focus on the Family, headed by conservative evangelist James Dobson, have also taken aim at the judiciary. A Focus on the Family website posts this opinion:

During the past 60 years, the federal courts (from district to the Supreme Court) have gradually shifted from the constitutional mandate of applying the law to actively legislating from the bench, bypassing the le-gitimate function of the Congress and state legislatures. These ‘activist courts’ are using powers not granted them in the U.S. Constitution to overturn the will of the people and the legislatures of the states.

Such criticisms, no matter where they come from, are not unexpected, according to William K. Weisenberg, as-sistant executive director of the Ohio State Bar Association (OSBA) and the chair of the ABA Standing Committee on Judicial Independence. “We’re always going to have some discontent,” he says, “but the only way to address that is to have an informed citizenry.”

To Justice O’Connor, Weisenberg, and others, that is where the ABA and state and local bars can jump in to help.

State and local bars to the rescue

One of the most important battlegrounds for judicial independence has been in Missouri, according to Charles Harris Jr., the immediate past president of the Missouri Bar. “We had the first nonpartisan court selection, so we were Ground Zero (for nationwide opponents),” he says. “They figure, ‘If you can get rid of it where it started, there would be a domino effect.’ ”

Some 30 states use variations of the Missouri Plan for judicial selection.

Fearing a public backlash against lawyers for the bar’s support of the plan (the negative image problem, Harris says), the association opted to enlist the support of religious organizations, the business community, chambers of commerce, and the media to publicize the potential problems of dismantling judicial selection. It took 18 months of planning, together with careful fundraising by nonbar groups (to avoid Keller conflicts), to halt the proposed legisla-tive changes.

“It was a team effort, and the least important player was the bar,” Harris says. “It was one of the first times in Missouri where the plaintiff’s bar and the defense bar were on the same page.”

It took a direct legislative threat to the judiciary in 2006 to spark action in Colorado. That’s when Amendment 40 was on the ballot, a measure that would have placed term limits on state judges—even those already sitting on the bench. “Whenever you say ‘term limits’ in Colorado, people say, ‘Yeah, let me have that,’ ” says William E. Wal-ters, president of the Colorado Bar Association.

Facing initial polling that showed residents favored the term limits by a 70-30 margin, the bar quickly enlisted business leaders, judges, and other bars in an educational campaign against the measure. The measure was defeated by a 57-43 margin at the polls in 2006. But what came after the vote has been equally important, Walters says. Many of the original coalition members pulled together to launch an educational outreach campaign, Our Courts, (www.ourcourtscolorado.org) which mostly features judges.

“There was a sense of a gap,” says Colorado Court of Appeals Judge Russell Carparelli, who has helped spear-head the effort. “Where was the fundamental information for the citizenry for this branch of government?”

Our Courts offers an effective weapon for the Colorado bar to augment its public education efforts and for other legal organizations to reach out in the wake of Amendment 40. In a nutshell, it provides a comprehensive program about what the judiciary does and why it needs to remain independent. It has featured a series of presentations—initially in the Denver area but now expanding—by judges to chambers of commerce, Rotary Clubs, education groups, neighborhood associations, and labor and trade organizations. To date, the program has reached more than 3,000 people.

“There is no opinion. It’s all factual,” Carparelli says. “It’s not Civics 101. We wanted it to be interactive and visual. We wanted a durable, professional product. This is a process that never ends.”

In Ohio, where the tenor of many state judicial elections over the last decade has been negative and fraught with charges of big money influence, the OSBA is making plans this year to bring the bench, the bar, and civic organiza-tions together to explore the possibility of public financing for judicial campaigns. “We need to remove the percep-tion of money influencing judicial decisions and opinions,” Ohio’s Weisenberg says.

Additionally, the OSBA’s Young Lawyers Division has adopted the ABA’s “Least Understood Branch” educa-tional program with the goal of making it a key outreach program in schools and community youth organizations (www.abanet.org/judind/toolkit/impartialcourts). “It’s a wonderful opportunity for young people to talk to young people,” Weisenberg adds. “This has great potential. Their enthusiasm is contagious.”

Justice O’Connor has adopted a similar theme. She has been working with the Georgetown University Law Cen-ter and Arizona State University on an interactive Web site (www.ourcourts.org) that is designed to teach school-children about the three branches of government—focusing on the judiciary.

“They can play games on the computer and learn to think like a lawyer. I’m thrilled with the project, but right now, we don’t have things like that,” she says. “The educational effort is very weak in our country, and there’s noth-ing that will take us down sooner as a nation than having a nation of young people who don’t understand the sys-tem.”

Impact of partisan elections

With the election season just passed—and some state judicial races again characterized by special interest funding and brutal campaigns—Justice O’Connor hopes that more states will look at ways to eliminate such elections, rather than to encourage them. It’s one more factor, she says, that contributes to public skepticism of the judiciary.

“When you have partisan elections, the voters tend to think, ‘Oh, the judges are just like any other political fig-ure. They have to get the money to get elected and we have to find out what they’re going to do and vote for our person,’ ” she says.

The ABA’s Wells agrees. He sees the issue of judicial elections as a continuing problem. “Partisan elections of judges are eroding public confidence in our judicial system,” he says.

Judicial election versus merit selection offers a mixed bag, according to the NCSC’s Rottman. While some states such as Arizona, Missouri, and Tennessee are looking at scaling back merit selection, other states such as Minnesota and Pennsylvania are exploring the elimination of some elective judicial positions. Still others, like Ohio, are exam-ining the possibility of publicly financed campaigns to help eliminate the perception of linking campaign contribu-tions to judicial decisions.

The NCSC, along with the ABA, is also working to promote judicial campaign oversight committees that en-courage voluntary compliance with the relevant legal canons as a preferred way to run a judicial campaign, Rottman adds. Seventeen states have such committees, which educate the media, candidates, and the public on how judicial elections should be conducted. They also seek agreements from candidates to abide by clear ground rules and to promote a high standard in campaign advertising.

The NCSC is also active in helping judges show the public their roles and how they reach their decisions by as-sisting them in writing clear explanatory opinions and orders in cases. For example, the center is working with the Missouri judiciary to prepare an online course, “Opinion Writing in Controversial Cases” (www.ncsconline.org/opinionwriting).

“This is particularly important in controversial cases in which emotions run high and understanding may be low, “ Rottman says.

With the weight of Justice O’Connor, the ABA, the National Center for State Courts, and other leaders behind them, Wells and others are optimistic that the bar can continue to play an informative and influential role in protect-ing, and even expanding, judicial independence.

They also know it will be an educational and informational challenge.

“Many more bar associations and judges are going out to talk to the public,” Ohio’s Weisenberg says. “It takes a long time, but I think it’s slowly taking hold.”

Mobilizing the forces

—RJD

If there is one thing that Sandra Day O’Connor and Tommy Wells would like to see emerge from the upcoming Presidential Summit on Fair and Impartial State Courts, it is a strong voice from bar associations in support of the judiciary.

“It falls on the lawyers of the community to be advocates,” Justice O’Connor says. “You have to mobilize law-yers and effectively lobby for change. Lawyers are supposed to know how to talk about things.”

In addition to advocacy, bars also need to be effective educators of legislators, executives, adult citizens, and schoolchildren throughout the year, according to Justice O’Connor.

“They have to have some kind of committee that can be available, be aware, and be promoting to give the media information for appropriate judicial issues,” she says. “I think every state bar should have an educational committee that works together with the state supreme court and other courts to educate the young people of the state about courts.”

One of the keys to the summit, scheduled for May 7–9 in Charlotte, N.C., is the bringing together of prominent bar leaders, chief judges, legislators, and other leaders from nongovernmental citizen organizations in one place to develop cooperative plans for promoting fair and impartial courts that are empowered to serve the public, Wells says.

The summit will highlight strategies for good interbranch relations so that courts have the resources they need to provide fair and impartial resolution of disputes, Wells explains. “This emphasis is why the theme of the summit is ‘Justice Is the Business of Government,’” he adds.

Bill Weisenberg, chair of the ABA Standing Committee on Judicial Independence, expects the actions at the summit to make their way quickly to state and local bars, where those ideas can be implemented. “State and local bars are uniquely positioned to be conveners,” he says. “Examples can be set (at the summit) that can set the stage for ways things can be improved. At times like this, we really need to stick together.”